The Use of Minority Languages in the Justice System

The Use of Minority Languages in the Justice System
Just. Journal of Language Rights and Minorities,
Revista de Drets Lingüístics i Minories

Editors:
Xabier Arzoz & Vicenta Tasa

The judiciary and the administration of justice in democracies, by virtue of their nature, entail some inherently problematic characteristics that bear further scrutiny. If the judiciary were to be selected exclusively through democratic processes by the populace, there would be a significant risk of appointing individuals without the necessary technical qualifications to enforce laws and deliver justice. Conversely, if the judiciary, as a technically proficient body of qualified public officials, were to autonomously select its leadership, this could result in an insular corporatism that, at best, might appoint competent and impartial individuals but would lack any form of democratic legitimacy (Jiménez Asensio 2019).

Similarly, the judiciary, in carrying out its functions, should, according to classical theories of the separation of powers, limit itself to applying or interpreting the law as faithfully and strictly as possible. Nevertheless, in recent decades, there has been a growing trend of courts engaging in expansive (and corrective) interpretations of legislation. This amounts to an encroachment by the judiciary on the powers of the legislative and executive branches, as such interpretations can alter the intent of legislative acts or executive regulations. In doing so, courts are arguably overstepping their proper role (Tate & Vallinder 1995). Furthermore, the crisis facing Western democracies (Przeworski 2022) is frequently accompanied by an increase in practices of lawfare—the misuse of judicial powers to interfere in democratic political competition—and by executive interventions in the judiciary aimed at subordinating it to the will of transient political majorities (Tirado Sánchez 2021; see also the special issue of the journal on this topic, Wallace & Monzó-Nebot 2024).

These overarching dynamics of the judiciary, the judicial branch, and the relationships among the different powers of the State have significant implications for civil, social, political, and language rights. There is a correlation between the quality of the separation of powers, the functioning of the judiciary, and the rule of law, on the one hand, and the level of authoritarianism, the quality of democracy, and often the protection of linguistic minority rights, on the other (Kymlicka 2001). In the Western context, countries that afford equal recognition to linguistic diversity and demonstrate a commitment to protecting linguistic minorities—such as Switzerland, Finland, Belgium, Canada, and even certain regions of Italy—tend to exhibit well-functioning judicial systems and achieve linguistic justice (Landman 2018).

That said, in the Western world, the process of constructing modern nation-states has given rise to two radically opposing perspectives on the respect and recognition of linguistic diversity. On one hand, the authoritarian Jacobin model viewed linguistic diversity within a nation-state as an obstacle to creating a cohesive society with a unified identity. On the other hand, the Swiss model regarded linguistic diversity as a strength and emphasized that the role of the State is to protect and enhance the social standing of minority languages.

In countries where the Jacobin conception has prevailed, a hierarchical linguistic system has been established, accompanied by a narrative that portrays linguistic minorities as social groups with inferior or subordinate status compared to the majority or dominant group (Deconchy 1985). These minorities are often associated with languages perceived as less valuable or less useful than the dominant languages.

Countries with a uniformist Jacobin tradition enshrine a single State language as the sole official language across all public domains and institutions. They often mandate that the official State language is the only language used in the administration of justice and the judiciary. In cases where other languages are permitted, such as in Spain, the dominance of the State’s official language effectively renders the use of other languages in the judicial system nearly impossible.

By contrast, political systems such as those of Switzerland, Canada, or the European Union, which officially recognize multiple languages, regulate legal practices, the structure of legal services, and the selection systems for judges and prosecutors in ways that enable all official languages to be used in courts. These systems ensure that the choice of language depends on the will of the citizens, regardless of whether it is the working language of the court (Schmitt 2014).

Between the extreme uniformist model, which permits the use of only one language, and the ideal pluralist model, which allows the use of all a country’s indigenous languages, lies a complex reality with numerous nuances and diverse solutions. Nevertheless, the basic lines of action are clear. Some societies strive to enable the use of the greatest possible number of indigenous languages across all branches of government in the most equitable manner, while others prioritize the exclusive use of a single language.

These dynamics are evident in legal practice, current legislation, and political and legislative debates, though they fluctuate over time. The drafting of the European Charter for Regional or Minority Languages in 1992 and the emergence of new constitutional frameworks in Latin America and Africa at the end of the twentieth century and the beginning of the twenty-first century offered promising momentum for the recognition and use of minority languages in society, public institutions, and courts of law. Some of these initiatives have improved the legal status of linguistic minorities. However, in general, they do not appear to have fundamentally altered the dynamics established by nineteenth-century nation-States—particularly in Europe—where stable formulas of de facto rejection and suppression of linguistic diversity have often been entrenched. By contrast, some of the world’s most democratically advanced countries have embraced linguistic diversity, ensuring legal and judicial equality for multiple languages (Tasa-Fuster 2019; 2021).

Advanced theories of justice have been redefined in pursuit of a new understanding of the principle of equality, aiming to overcome multiple forms of oppression, the false neutrality of the law, and the abstractions of homogeneity and equality (Young 1990; Renault & Touraine 2005). These redefinitions also advocate for more cooperative forms of justice (Van Parijs 2003; 2011). Ultimately, as Innerarity (2015) reminds us, in our preoccupation with the what of justice, we have neglected the who. The who—the agent of action—is equally important: it matters who does the what. It is not the same for linguistic minorities themselves to hold the tools necessary to establish a robust system of linguistic security as it is for the linguistic majority to wield the power to determine the level of protection afforded to minorities (Monzó-Nebot & Mellinger 2022).

The issue of difference—of differences within equality—is, therefore, central. It is not sufficient for societies to adopt a condescending tolerance that recognizes two realities: a “normal” citizenship and an “other” citizenship that is tolerated in its difference (Hekman 2004). Nor can the solution lie in the “recognition of the majority’s rights” (Orgad 2015) as superseding the rights of minorities. This form of tolerance represents a type of power, hierarchy, and domination.

“Normal” citizenship is often portrayed as devoid of nationalism, distinct identity, gender, skin color, or language. It occupies the upper levels of the hierarchy, where its nationalism, identity, gender, skin color, and language are deemed normal and dominant—banal, to use Billig’s (1995) terminology. Neutrality and impartiality are frequently standards defined by the dominant group within the majority (Innerarity 2015).

Given this reality, a more diverse analytical approach is necessary—one that explores the evolving dynamics of judicial power in Western countries, connects these dynamics with democratic quality and linguistic rights, and, more specifically, examines the use of and respect for minority languages in courts of law.

Just. Journal of Language Rights and Minorities, Revista de Drets Lingüístics i Minories invites the academic community to submit article proposals for a special issue adopting a multidisciplinary perspective on the right of linguistic minorities to use their own languages in courts of law, particularly in multilingual States. This issue aims to foster an interdisciplinary debate that includes diverse academic disciplines. While legal specializations will form the foundation, contributions from political science, translation and interpretation studies, jurilinguistics, and various social sciences are strongly encouraged.

This dialogue is envisioned as a key element in examining the rights of linguistic minorities to have their language recognized as one of the languages of justice. By combining perspectives from multiple academic fields, the special issue seeks to deepen our understanding of minority rights and the functioning of justice systems in democracies, generate critical insights, and promote innovative approaches to advancing social justice and equity in pluralistic societies.

Submissions are welcome in English, French, Catalan, or Spanish. Interdisciplinary studies are particularly encouraged on the following topics, among others:

• The significance of language rights within the justice system for the quality of the judiciary and the strength of the rule of law;
• The language rights of citizens in judicial proceedings;
• The importance of linguistic training in the justice system, including the selection and appointment processes for judges and prosecutors, the linguistic training of legal practitioners, and the organization of legal aid in relation to minority languages;
• The working languages of courts and the languages used in judicial proceedings;
• Linguistic lawfare.

The quality of the judicial system and the strength of the rule of law must also be evaluated with consideration for the linguistic rights of minorities. One of the most subtle and insidious forms of domination, perpetuated through the ideological discourses of banal nationalism, is the neglect of the linguistic dimension in the social, civil, legal, and political relations of States. Humans are inherently social, communicative, and fundamentally linguistic beings. We communicate through oral, written, or sign-based linguistic systems and live in societies and States that are rarely entirely monolingual across all their territories and indigenous populations.

However, the study of the relationship between the quality of the rule of law and the respect for linguistic rights has received limited attention in democracies. This special issue of Just seeks to provide an opportunity to address this critical topic. To do so, it is imperative to study and compare the basic legal frameworks governing linguistic use in judicial systems across different countries. This includes analyzing cases where linguistic justice is ensured within the judiciary and identifying the key requirements and conditions necessary to achieve it.

A central aspect of understanding the actual guarantee of linguistic minority rights in the justice system involves examining the linguistic training required in the selection and appointment processes for judges and prosecutors, as well as the linguistic obligations of these professionals. In a democratic system, the judiciary and prosecution serve the citizenry; in autocratic systems, they serve the State or exist as social sectors detached from and elevated above the citizenry and the other branches of government.

Additionally, a comprehensive study is needed to explain how multilingual courts operate, regardless of whether they work with a limited number of internal working languages, and how they organize themselves to ensure the use of multiple languages in judicial proceedings. This is particularly crucial when individuals involved in a judicial process speak different native languages.

The regulation of citizens' linguistic rights in the courts is, in fact, a pivotal issue for multilingual societies committed to respecting linguistic diversity and ensuring genuine equality for all individuals and indigenous linguistic communities.

Finally, the goal is to investigate whether, in instances of judicial lawfare observed in recent decades, linguistic lawfare has also occurred. This includes examining whether judicial persecution of linguistic groups or the erosion of linguistic rights has taken place due to politicized judicial interpretations of legislation worldwide.

Building on these areas of discussion, the following questions are proposed to guide the preparation of contributions for this special issue:

• What is the relationship between the strength of a country’s judicial system and rule of law and the degree of recognition of language minority rights?
• Is the linguistic dimension, including language rights, insufficiently addressed in the administration of justice?
• How are linguistic uses regulated within the judiciary across different countries?
• How is this regulation managed in multilingual countries with multiple official languages?
• What linguistic training is required in the selection and appointment processes for judges and prosecutors? What are their linguistic obligations, particularly in multilingual countries?
• Are the judiciary and prosecution at the service of the citizenry or the State?
• How do multilingual courts function? How are they organized to ensure the use of multiple languages in judicial proceedings, especially in cases where those involved in a judicial process have different native languages?
• How are the linguistic rights of citizens regulated in courts of law?
• Are there examples of negative judicial lawfare of a linguistic nature, such as the judicial persecution of linguistic groups or the erosion of linguistic rights?

Just. Journal of Language Rights & Minorities, Revista de Drets Lingüístics i Minories is a scientific journal dedicated to disseminating scholarship on the protection, enforcement, and promotion of the rights of linguistic minorities as well as related themes arising from the confluence of language, the social dynamics of dominance and oppression, and the law. Interested authors are invited to send 500- to 700-word proposals and inquiries directly to the guest editors: Xabier Arzoz Santisteban (xarzoz@der.uned.es) and Vicenta Tasa Fuster (vicenta.tasa@uv.es) by 20 January 2025. Please include a brief bionote about the authors and their affiliations in a separate file. All abstracts and manuscripts should use the journal’s adaptation of the Chicago Manual of Style (CMS) for both citation and drafting. A summary of the drafting CMS guidelines is available in Just’s author guidelines (https://ojs.uv.es/index.php/JUST/about/submissions). Authors of abstracts that are accepted for consideration will be invited to submit a full manuscript that is between 6000 and 8000 words in length (exclusive of abstract and references but including footnotes). Every manuscript will be submitted to a double-blind peer review that includes at least two referees.

The publication of this special issue will adhere to the following editorial timeline:

Submission of abstracts (500-700 words) to guest editors	20 January 2025
Decision on abstracts	30 January 2025
Submission of full manuscripts	31 March 2025
Final versions of articles	15 June 2025
Decision on publication	15 July 2025
Publication of special issue	9 October 2024

 

References

 

Billig, Michael. 1995. Banal nationalism. New York, NY: Sage.

Deconchy, Jean-Pierre. 1985. “The paradox of ‘orthodox minorities’: When orthodoxy infallibly fails.” In Perspectives on minority influence, edited by Serge Moscovici, Gabriel Mugny & Eddy Van Avermaet, 187–200. Cambridge, UK: Cambridge University Press. https://doi.org/10.1017/CBO9780511897566.011.

Hekman, Susan J. 2004. Private selves, public identities: Reconsidering identity politics. University Park, PA: Pennsylvania State University Press.

Innerarity, Daniel. 2015. La política en tiempos de indignación. Barcelona, ES: Galaxia Guttemberg.

Jiménez Asensio, Rafael. 2019. “Poder Judicial y Administración de Justicia.” Iura Vasconiae 16: 459–501.

Kymlicka, Will. 2001. Politics in the vernacular. Nationalism, multiculturalism, and citizenship. New York, NY: Oxford University Press.

Landman, Todd. 2018. “Democracy and human rights: Concepts, measures, and relationships.” Politics and Governance 6 (1): 48–59.

Monzó-Nebot, Esther & Christopher D. Mellinger. 2022. “Language policies for social justice—Translation, interpreting, and access.” In “Language policies for social justice,” edited by Christopher D. Mellinger & Esther Monzó-Nebot. Special issue, Just. Journal of Language Rights & Minorities 1 (1–2): 15–35. https://doi.org/10.7203/Just.1.25367.

Orgad, Liav. 2015. The cultural defence of nations: A liberal theory of majority rights. Oxford, UK: Oxford University Press.

Van Parijs, Philippe. 2003. “Linguistic justice.” In Language rights and political theory, edited by Will Kymlicka & Alan Patten, 153–168. New York, NY: Oxford University Press.

Van Parijs, Philippe. 2011. Linguistic justice for Europe and for the world. Oxford, UK: Oxford University Press. https://doi.org/10.1093/acprof:osobl/9780199208876.001.0001.

Przeworski, Adam. 2022. La crisis de la democracia. ¿Adónde pueden llevarnos el desgaste institucional y la polarización? Madrid, ES: Siglo XXI.

Renault, Alain & Alain Touraine. 2005. Un débat sur la laïcité. Paris, FR: Stock.

Schmitt, Nicolas. 2014. “L’experiénce suisse en matière de garanties linguistiques.” In Garantia dels drets lingüístics. Estudis de cas: Bèlgica, Canadà, Espanya, Itàlia, Moldàvia i Suïssa, edited by Anna M. Pla. Barcelona, ES: Institut d’Estudis Autonòmics.

Tasa-Fuster, Vicenta. 2019. Llengua i Estat: Suïssa i Espanya davant la diversitat lingüística. València, ES: Universitat de València, Servei de Publicacions.

Tasa-Fuster, Vicenta. 2021. “Ideologia, jerarquia lingüística i jurisprudència constitucional a Espanya.” Revista de Llengua i Dret 76: 22–39.

Tate, C. Neal & Torbjorn Vallinder, eds. 1995. The global expansion of judicial power. New York, NY: New York University Press.

Tirado Sánchez, Arantxa. 2021. El lawfare: golpes de Estado en nombre de la ley. Madrid, ES: Akal.

Wallace, Melissa & Esther Monzó-Nebot. 2024. “Gender and ethnolinguistic lawfare.” Just. Journal of Language Rights & Minorities, Revista de Drets Lingüístics i Minories 3 (2): 298 p. https://doi.org/10.7203/Just.3.2.

Young, Iris Marion. 1990. Justice and the politics of difference. Princeton, NJ: Princeton University Press.